The Pennsylvania Commonwealth Court has ruled that CBD oil, when prescribed by a doctor for a work-related injury, is reimbursable. In this matter, a workers’ compensation attorney was injured on the job when he tripped over a trial bag, causing a back injury.
The November 14 opinion of the court sitting en banc resulted in a 7-2 ruling, reversing the Workers’ Compensation Appeal Board’s (WCAB) prior order, which had in turn reversed the Judge’s decision. The Judge had ruled that CBD oil was a medicine for purposes of reimbursement under the PA Workers’ Compensation Act. In this case the treating doctor, who also provided access to various other medications via prescription, prescribed the CBD oil to avoid increasing the dosage of the other medications and to assist with putting off surgical intervention. The claimant bought the CBD oil and had receipts, but his employer refused to reimburse the claimant for same. The claimant filed a Penalty Petition and while the Judge found for the claimant, he did not assess penalties. In the Commonwealth Court review, the WCAB was chastised for disregarding the Judge’s findings of fact and using its own findings to support “preferred conclusions”. The Commonwealth Court held that there was no evidence of record showing that claimant used CBD oil illegally under federal law. Thus, any finding about potential illegality in CBD oil use by people other than the claimant was held to be irrelevant to this case. The Commonwealth Court also chastised the WCAB for having focused on “possible” impact to other insurers.
Comment: We can see a trajectory of public opinion, law changes and judicial interpretation moving in the direction of providing eventual access to medical marijuana products, and workers’ compensation payment for same. Employers, third-party administrators and carriers should continue to watch for changing obligations in this developing area of the law.